SB 67 changes the initiative process to require petitioners to gather nearly 25,000 more signatures—88% more than the current requirement—to place a constitutional amendment on the ballot. SB 67 also contains an unconstitutional emergency clause: enacting this signature hike immediately does not satisfy any urgent funding need for the support of state government; it only serves as a way for the Legislature to stifle our ability to suspend and refer this bad change and raise the bar right now for any citizens who try to circulate an amendment petition this spring.
Senate State Affairs passed HB 1069, the IM22 repeal, on a 7–2 vote last Wednesday, with only Democrats Billie Sutton and Troy Heinert standing for the voters. Expect a similar outcome today… but don’t let grim expectations stop you from making your voice heard! Get those last-minute messages in to the committee, and let them know our constitution already has enough checks and balances—most importantly, the vote of the people—to protect its integrity.
But the South Dakota Legislature’s effort to strip voters of their constitutional right to legislate and make Pierre the sole lawmaking authority is not limited to fast-tracked House Bill 1069. Here is the list of bills filed so far that either tinker with voter-approved laws or revise petition and election law to weaken voter power. I mark in red the worst bills, those that definitely deserve a NO vote.
Tinkering with Voter-Approved Laws:
HB 1069: An Act to repeal and revise certain provisions related to campaign finance and to declare an emergency.
Intent: Repeal IM22’s $100 limit on gifts from lobbyists to lawmakers and immediate family and replace it with a soft $100 cap on gifts riddled with exceptions (including all those free meals on the Legislative Social Calendar).
HB 1175: “An Act to revise the method of establishing certain interest rates.”
Originally a carcass bill, HB 1175’s title suggested possible tinkering with the 36% rate cap on payday lending. An amendment offered Monday, Feb. 13, showed the bill targets the interest rates used to figure damages in court cases. No harm, no foul.
SB 131: An Act to revise certain provisions concerning the period of time elected officials are prohibited from lobbying after leaving office.
Intent: now nearly replicates IM 22 Section 65 lobbyist revolving-door limits; originally offered a significantly weaker replacement. Forbids any “No elected officer, department or agency head, or division director, or the highest paid employee reporting to such person” from lobbying for two years after leaving government service.
HB 1034: An Act to establish certain fees for receiving electronic files of petitions, to revise certain provisions concerning filing petitions and other documents, and to revise certain provisions concerning elections and voting.
Intent: mixed bag!
On the bad side, HB 1034 strikes the Secretary of State’s obligation to include Pro and Con statements from interested parties on the official state ballot question pamphlet. While these Pro/Con statements can include utter bushwah, they are also one opportunity for honest, low-budget grassroots campaigns to reach every voter in the state with a few paragraphs explaining their measure.
On the good side, HB 1034 improves openness by establishing fixed, affordable fees for obtaining copies of petitions that citizens can review for fraud and grounds for challenges.
HB 1074: An Act to provide for limits on certain out-of-state contributions to ballot question committees.
Attacking: funding for ballot measure campaigns.
Intent: Amended to cap contributions from out-of-state residents to ballot question committees to $100,000; originally imposed an unworkable and unconstitutional limit on out-of-state contributions to ballot question committees.
SB 77: An Act to provide for a fiscal note for any initiated measure or initiated amendment to the Constitution that would have a fiscal impact on the state.
Attacking: initiative process.
Further delay circulation of initiative petitions by making sponsors wait for Legislative Research Council to complete a fiscal analysis;
Make it harder to circulate initiative petitions by requiring circulators to “provide notice to any person who signs the petition that the initiated measure or initiated amendment to the Constitution may have an impact on revenues, expenditures, or fiscal liability of the state or its agencies and subdivisions”;
Deter voters by cluttering ballot with fiscal impact statement; committee amendment limits statement to 50 words.
SJR 2: A Joint Resolution proposing and submitting to the electors at the next general election amendments to Article XXIII, of the Constitution of the State of South Dakota, relating to amendments to the Constitution.
Attacking: process of passing constitutional amendments.
Raise the vote required for the Legislature to put a constitutional amendment to a public vote from simple majority to two thirds of each chamber;
Raise the vote required by the public to amend the constitution from simple majority to 60%.
There a couple faintly pro-democracy measures in the hopper. One such exception to the Legislature’s anti-democratic rampage: Senator Stace Nelson has proposed a constitutional amendment that may increase voter power a smidgeon. Senate Joint Resolution 1 would put on the 2018 ballot an amendment to make the Secretary of Veterans Affairs an elected office instead of a gubernatorial appointment.
SB 171 would create a task force to study “government, campaign finance, lobbyist restrictions, and ethics,” the subjects of IM 22. (Status: passed Senate, referred to House State Affairs.)
I’m no fan of task forces, but I would prefer to see killed all of the above proposals on I&R and perhaps all of the “replacement” bills offered to compensate for the Legislature’s hasty repeal of IM 22 in favor of empaneling these task forces and conducting public hearings statewide to give voters another chance to tell legislators what they really want.
I’m not the only one who thinks the “emergency clause” Republicans are using in House Bill 1069 to repeal Initiated Measure 22 is unconstitutional. Rick Weiland and Drey Samuelson, leaders of TakeItBack.org, say this ploy by Republicans to insulate their repeal from a public vote is bogus:
“This is completely outrageous,” Weiland said, “not only because the Legislature obviously believes its judgment is superior to that of the people of our state, but also because they are arrogantly—and improperly—applying the ‘emergency clause’ to this legislation when there obviously is no emergency present.”
…“It is highly ironic,” Samuelson said, “that the South Dakota Legislature not only has chosen not to listen to the expressed will of the people of our state, the very people who pay their salaries, but the Legislature is not even listening to the legal experts in its own Legislative Research Council. What is also ironic is that members of the Legislature charge that the South Dakota Anti-corruption Act is unconstitutional, when it is their own remedy that is clearly unconstitutional!” [TakeItBack.org, press release, 2017.01.24]
And if Republican legislators insist on using the emergency clause to quash a referendum drive, TakeItBack.org is signaling it’s ready to lawyer up and fight:
“This needs to be challenged in the courts, and almost certainly will be,” Samuelson concluded [TakeItBack.org, 2017.01.24].
Represent South Dakota provides this sampling of negative press that House Bill 1069 has earned the South Dakota Legislature on the national stage (not that anyone will notice, since the President of the United States is destroying America’s reputation by threatening to go to war against an ally for oil):
Both SB 67 and HB 1069 include emergency clauses, which will insulate them from popular referendum. Voters could still initiate measures to repeal these odious bills, but while a referendum would suspend those bills until after the 2018 election, an initiative effort would leave those measures in place until the 2018 election, meaning petitioning and campaigning in this election cycle would take place under the Legislature’s preferred anti-democratic, anti-anti-corruption rules.
Article 3 Section 1 of the South Dakota Constitution specifies which laws the Legislature may exempt from referendum with emergency clauses:
However, the people expressly reserve to themselves… the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions [SD Const. Art. 3 Sec. 1].
An emergency clause for the immediate preservation of public peace, health, or safety… is generally used when a bill is regulatory in nature and it is necessary to begin the regulation immediately to preserve the public safety.
Both SB 67 and HB 1069 invoke the latter criterion:
Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval [SB 67 Section 2;HB 1069 Section 35].
SB 67 does not deal with taxation, raising of revenue, or appropriations. It does not enact any funding for government activities. By the LRC’s own explanation, SB 67 is not addressing emergency needs for support of state government.
HB 1069 mentions appropriations by repealing the voter-approved funding for the Democracy Credits program. However, that funding has been enjoined by Judge Mark Barnett and remains in limbo until the South Dakota Supreme Court hears and rules on the lawsuit against IM22. HB 1069 is not providing funding to any government operation; it seeks to repeal funding that is already blocked. HB 1069 thus does not address any emergency needs for support of state government.
TakeItBack.org, Represent South Dakota, and others who supported IM22 are raising heck over HB 1069. They should add SB 67 to their agenda, since constitutional amendments are apparently the only way South Dakota voters can guarantee their will will stand as law without Legislative interference. TakeItBack.org and Represent SD should prepare their legal briefs now on the improper emergency clauses, be ready to file suits the moment Governor Daugaard signs those laws, and have referendum petitions ready to go the moment the judge overturns those bogus emergency clauses.
Republicans expand their war on people power with Senate Bill 67, which would effectively double the number of signatures we citizens need to put constitutional amendments to a public vote.
Under current law, putting a constitutional amendment on the ballot requires collecting petition signatures equal to at least 10% of the number of votes cast for Governor in the most recent gubernatorial election. 277,403 South Dakotans voted for Governor in 2014; thus, in the 2016 cycle, that number was 27,741.
SB 67 changes the signature criterion from participating voters to registered voters. In 2014, 521,041 South Dakotans were registered to vote; thus, SB 67 would raise the signature requirement to 52,105, nearly 88% more signatures.
Republicans, including Governor Dennis Daugaard, have complained that big-money out-of-state interests can too easily get bogus measures on our ballot. However, of all the constitutional measures proposed by citizens in the 2016 cycle, the only two measures that garnered enough signatures to beat the SB 67 threshold were the two biggest-money out-of-state measures in play, billionaire Henry T. Nicholas’s vanity crime victims bill of rights and the payday lenders fake 18% rate cap.
SB 67 does not stop big-money from accessing South Dakota’s ballot; by requiring 88% more signatures, SB 67 makes it 88% harder for real grassroots South Dakota groups to amend the Constitution and makes it far more likely that the only amendments we will see on our ballot will be those proposed by big-money interests.
Prime sponsor Senator Jeff Partridge is trying to reduce potential backlash by raising the bar only for amendments but leaving initiated laws and referenda alone. However, since the Legislature seems eager to establish its ability to undo at will our will on initiated laws, Senator Partridge is focusing on boxing us citizens out of our final say on the one thing the Legislature cannot change, the state constitution.
SB 67 also includes an emergency clause that would make this law take effect right away. I see sense no emergency; SB 67 is not, in the words of its Section 2, “necessary for the support of the state government and its existing public institutions.” The emergency clause is necessary to raise signature requirements right now and to prevent us citizens from referring this bad law to a public vote.
Again, while the first words out of President Trump’s mouth yesterday were about giving power back to the people, his Trumpublicans in South Dakota are trying to take power away from the people and consolidate power in Pierre. There’s reason for folks on both sides of the aisle to raise heck about this anti-democratic, anti-populist bill. Call your Senators and tell them to kill Senate Bill 67 now!